BILL OF ADVOCATION AND NOTE OF APPEAL BY RW AGAINST HER MAJESTY'S ADVOCATE

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 17

HCA/2017/000038/XC

HCA/2017/000029/XC

Lord Brodie

Lady Clark of Calton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD TURNBULL

in

BILL OF ADVOCATION and NOTE OF APPEAL

under section 65(8) of the Criminal Procedure (Scotland) Act 1995

by

R W

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: D. Forbes; Martin Johnston & Socha Ltd Kirkcaldy

Respondent: Cottam, Solicitor Advocate AD; Crown Agent

9 February 2017

Introduction[1] On 9 February 2017 the court passed the Bill of Advocation presented on the appellant’s behalf and granted the appeal brought by him in terms of section 65(8) of the Criminal Procedure (Scotland) Act 1995. On that occasion we indicated that we would give our reasons in writing and we now do so.

[2] The appellant, who is 77 years old, was indicted on charges involving historical sexual offending. He was latterly due to stand trial in a sitting of the Sheriff Court at Kirkcaldy which commenced on 5 December 2016. The 12 month time bar, as extended, was due to expire on 23 December 2016.

[3] The Bill and Note of Appeal were brought to challenge two decisions made by the sheriff on 15 December 2016. At what was called “a continued first hearing” the sheriff ex proprio motu adjourned the forthcoming trial diet until 9 January 2017 and then, on the Crown’s motion, extended the 12 month time bar period until 27 January 2017. It will be necessary to set out something of the history of the case in order to understand the circumstances in which the sheriff’s decisions came to be challenged.

Case History

[4] The appellant was indicted in relation to four sexual offences said to have taken place between 62 and 55 years ago, when he was aged between 14 and 20. The complainers were his two sisters and his sister in law, who were aged between about 5 and 15 years old at the respective times. The indictment was served on him on 3 September 2015. By that time the complainer in the first two charges, MM, was aged 70. The other two complainers were aged 66 and 64.

Pre-Petition Procedure
[5] The police investigation commenced in March 2011. The accused’s whereabouts were unknown until he was traced to an address in England in December 2013. In February 2014 the case was reported by the police to the procurator fiscal. By July 2014 all three complainers had been precognosced and MM had confirmed that she was housebound, as had earlier been communicated by the police reporting officer. By the end of July the “Pre-Petition Report” had been completed and it was in due course sent to the National Sex Crimes Unit within Crown Office. Matters proceeded until January 2015 when the appellant appeared on petition. In that same month an entry was made on the Victim Information and Advice (VIA) minute sheet to record that a telephone call had been received from MM. The entry noted:

“Call from [MM] – mega challenges ahead. She is more than happy to give her evidence BUT she is disabled – she suffers from arthritis, she does not leave her home for anything. She does not have a laptop or internet access. Use video services to go to her home?”

[6] It is not clear whether any consideration had been given to how MM’s circumstances might be accommodated in the period between July 2014 and January 2015, but her condition and the issues which it raised for the Crown had certainly crystallised by the latter date. It is worth noting at this early stage that the issue was not resolved until her evidence was taken on commission on 30 November 2016.

Post - Petition Procedure[7] The appellant first appeared on petition on 6 January 2015. An indictment was served on him on 3 September 2015 with a first diet set for 29 September and a trial diet for the assize in Kirkcaldy of 12 October 2015. Since the complainers had all been precognosced in the middle of the preceding year, it is not clear quite what case preparation was undertaken in the 8 months between first appearance and service of the indictment. What is known though is that on 18 August 2015 a further VIA communication was passed to the procurator fiscal to say:

“[MM] is disabled with arthritis is wheelchair-bound and never leaves the house. [M] lives in Mansefield. [M] is happy to give evidence but arrangements might have to be made for CCTV in her house? However, I am advised that she has no Internet access.”

[8] This, of course, was the second such communication from VIA to the procurator fiscal concerning the difficulties which there would be in securing the evidence of this complainer. Both messages repeated the information earlier obtained at precognition. Despite this, by the date of the service of the indictment no steps appear to have been taken to ensure that her evidence would be available.

[9] In the case of HM Advocate v MSW 2014 SCCR 361 the Lord Justice Clerk (Carloway) observed that the intention of the Criminal Procedure (Scotland) Act 1995 is that, as a generality, there should be one first diet at which the court is to decide the various matters referred to in section 71. At paragraph 2 he said:

“Although there is power to appoint a “further” first diet (s.71(7)(b)), that should not be taken as an incentive to hold multiple first diets which, instead of involving decisions being made, are simply “continued”, often for the same or similar reasons as those which have gone before.”

[10] In the present case the first diet was held on 29 September 2015. It thereafter called at a further 13 hearings which were called “first diets” or “continued first diets”. In total, trial diets were fixed for dates within six separate sittings between October 2015 and December 2016. The 12 month time bar period was extended, usually for months at a time, on five occasions, including the decision taken on 15 December 2016. In his report to this court the sheriff set out some of the history but expressed the view that it was not helpful, in the particular circumstances of this case, to pour over the minutes and examine which party’s motion caused the delay that led to the position which the court was in on 15 December 2016. We were unable to agree with that proposition. The minutes record the case progress, or lack of, and are designed, amongst other things, to provide anyone coming to the case with a history which will inform further decision making.

[11] An examination of the court minutes, as illuminated by the content of the sheriff’s report, provided a very clear explanation of the delay which occurred in the course of this case. It is correct to note that when it called at its first diet on 29 September 2015 it was adjourned on defence motion to allow an examination of the appellant’s mental health state. That investigation caused the trial diet to be adjourned until 19 February 2016. In the meantime, further first diets were held on 24 November and 29 December 2015. By this latter date all defence investigations had been completed and it was recognised that the accused was fit to stand trial.

[12] As the advocate depute acknowledged at the hearing before us, from the end of 2015 onwards, the only outstanding issue which stood in the way of a trial commencing was the question of how MM’s evidence was to be secured. That was a problem which had first been brought to the Crown’s attention a year and a half earlier by the reporting officer, was confirmed at Crown precognition in the middle of 2014 and was re-iterated twice by VIA during the earlier months of 2015.

[13] The whole question of how this vulnerable witness’s evidence was to be secured was dealt with by the Crown in a manner which was simply beyond explaining. The advocate depute who appeared before us recognised this and made no effort to do so. The history can be summarised as follows. By the end of 2015 the Crown had obtained a medical certificate which they sought to use in support of an application to introduce the complainer’s evidence by way of statement under section 259 of the 1995 Act. That certificate did not meet the terms of the section and it required a hearing before the sheriff on 5 January 2016 for this to be recognised. The minute for that hearing records that the sheriff refused the application, discharged the impending trial diet, of new fixed a trial diet for the sitting of 25 April 2016 and assigned a new first diet for 12 April 2016:

“To allow the Crown to explore Section 272 in relation to the evidence of [MM].”

[14] Section 272 of the 1995 Act is, of course, the section which permits either party to apply for the appointment of a commissioner to take the evidence of a witness who by reason of being ill or infirm is unable to attend the trial diet.

[15] After the passage of more than three months, on 12, 19 and 28 April, the case called as further first diets at which the issue of taking evidence on commission had moved no further forward. On 5 May, at what was the next trial diet (in the sitting of 25 April), the court was informed that the trial could not proceed:

“due to the likelihood of evidence of [MM] having to be taken on commission and timescales to organise same”.

[16] At this diet, and despite four full months having passed since the January diet which was adjourned to permit the Crown to explore the taking of evidence on commission, an incompetent verbal motion for authority to take evidence on commission was presented to the sheriff. Rule 24.1 of the Act of Adjournal (Criminal Procedure Rules) 1996 provides that such an application shall be made by petition in terms of Form 24.1-B presented to the appropriate court. Two months later, on 8 July 2016, at an unopposed hearing the sheriff granted the Crown’s application to take the evidence of MM on commission. Thus, six months after being given an opportunity to explore the use of section 272 the Crown obtained authority to take evidence on commission. By this stage the 12 month time bar period, which ought to have expired in January 2016, had been extended on three occasions and was now due to expire on 30 September 2016, with the trial now due to take place in the sitting of 12 September.

[17] At the next first diet, on 30 August 2016, the court was informed that the commission had not yet taken place. The appellant was still living in England and his attendance had been excused. That diet was continued until 6 September to allow his instructions to be taken on whether or not he would accede to a further adjournment of the trial diet, which would necessitate a further extension of the time bar period. At the 6 September hearing the sheriff was informed that the date on which all parties could attend at the complainer’s house for commission would be 3 November. Despite the fact that this would be four months after authority was granted, and ten months after the Crown had first begun exploring the question, no information is given in the minute to explain this further delay. Despite opposition, the sheriff granted the Crown motion to adjourn the trial diet to the sitting of 5 December 2016 and to again extend the time bar period so it of new expired on 23 December 2016.

[18] On 22 November, at the next first diet, the court was told that the commission was to take place on 30 November. There seem to have been two issues beyond anyone’s control which had prevented the commission taking place on the earlier anticipated date (3 November) and we attached no weight to the delay occasioned by these matters. At two more first diets, on 5 and 12 December, the court was advised about progress of preparing the transcript of the commission. Rather surprisingly, at the hearing on 12 December, the court was asked, on joint motion, to continue the first diet until 15 December:

“to allow CCTV footage to be viewed”

[19] The sheriff acceded to this motion. We were informed that this was to give the Crown and the defence representatives an opportunity to see the CCTV footage of the commission and that this had not been done earlier because they were both engaged in conducting another trial. Why this had not been done outwith court hours could not be explained.

The Hearing on 15 December 2016[20] The first diet held on Thursday 15 December called within the sitting which had commenced on Monday 5 December. This was the sitting in which the trial diet was due to call and the 12 month time bar period, as extended, was at that stage due to expire on 23 December 2016. The progress made in the sitting was explained to us in the sheriff’s report. He informed us that a two accused trial had commenced on Wednesday 7 December and lasted longer than he had expected, concluding in the afternoon of Friday 16 December. The next trial scheduled was another two accused case, one of whom was in custody, with a time bar of 1 January 2017. It was due to commence on Monday 19 December and was anticipated to last at least two days.

[21] The sheriff explained that when the present case called before him on 15 December it appeared to him that the trial could not reasonably be accommodated within the assize. With this in mind he canvassed the position with the parties. He informed us that the Crown shared his pessimism and the procurator fiscal depute was reluctant to start a trial which in all likelihood would spill into the period between Christmas and New Year but explained that the Crown were in a position to do so. The appellant’s solicitor insisted on the trial proceeding, in terms of her instructions. In these circumstances the sheriff decided ex proprio motu to adjourn the trial until the sitting commencing in January 2017. He explained that he did so in the interests of justice and in the interests of fairness to the accused. Having intimated this decision he invited, in effect, the Crown to move for an extension of the 12 month period which he then granted, despite opposition from the appellant’s solicitor. The sheriff told us that it was no fault of the Crown at this stage that the trial did not proceed and he said that he had little difficulty in concluding that if the Crown had made the motion based on his reasoning he would have been satisfied that sufficient reason had been shown to support it. He told us that he could see no prejudice to the appellant in a short delay given the previous history of the case.

[22] The sheriff then expanded upon the circumstances which caused him to adjourn the trial diet. He explained that the case was a sensitive one and that he did not think it would be in the interests of justice for the appellant, the witnesses and the jury to start a trial with the very real prospect of there being lengthy breaks over a number of days in the evidence. He said that the prospect of evidence concluding and there being days before speeches weighed heavily with him. He also said that, in his view, starting a trial and then adjourning for a number of days would not be favourable to the appellant. He would require to be away from his home longer than was necessary. He said that in these circumstances he did not consider that it was in the best interests of the appellant to start the trial at that time. The sheriff also took account of the impact on jurors. He said that to expect jurors to have to sit on a trial of this nature at that particular time of the year was a lot to ask. Given the anticipated interruptions he came to the conclusion that it was neither in their interests nor in the interests of justice to start the trial within the assize.

[23] Before continuing any further we would observe that what transpired was that the two accused trial due to commence on Monday 19 December resolved by plea of guilty on that date. Whilst that could not have been known in advance, we would also observe that, so far as the advocate depute could tell us, no consideration had been given to prioritising the present case over that two accused case. Whilst the other case had a custody time bar it might have been possible to liberate the accused with appropriate restrictions. Equally, other options for giving the present case priority, whilst still coping with the time bar in the custody case, might have been explored but do not seem to have been.

Submissions for the Appellant[24] On behalf of the appellant Ms Forbes submitted that the sheriff had statutory authority to adjourn the diet in terms of section 75A(2) of the Criminal Procedure (Scotland) Act 1995. That provision gives power to adjourn if the court “considers it appropriate to do so”. Ms Forbes submitted that the sheriff was clearly wrong in considering that it was appropriate to adjourn the trial diet and that this court should overturn his decision by passing the Bill. She submitted that the sheriff’s discretion in this case was vitiated by his failure to give proper consideration to the history of the case and to the fact that the parties were willing to proceed. In relation to the extension she submitted that no proper reason for granting an extension had been identified. The extension was granted in order to give effect to the sheriff’s decision to adjourn.

Submissions for the Crown[25] The advocate depute provided this court with a document which set out a timeline of the progress of the case from the commencement of the police investigation until the taking of the complainer’s evidence on commission. He acknowledged that there had been no canvassing of the case history before the sheriff on 15 December and therefore no discussion of what had taken place in the period prior to service of the indictment. He made no effort to defend the lack of progress which was evident from the timeline and volunteered that in light of the case history a Crown motion to extend the time bar made at that time could not have been granted. He reminded us that the Crown had not sought an adjournment and submitted that the sheriff’s decision had deprived the Crown of the opportunity to proceed to trial at a time when it had its witnesses cited and all of its evidence available.

[26] Given these circumstances, the advocate depute submitted that a decision to adjourn was one for the court at first instance, having regard to all relevant considerations, and that the sheriff, who had been closely involved in the earlier procedure, was best placed to weigh up all the circumstances. He drew our attention to paragraph 39 of the Sheriff’s report in which he stated that he had applied the two-stage test set out in HM Advocate v Swift 1985 SLT 26 and submitted that the Sheriff had therefore applied the correct test. In these circumstances his decision should stand.

Discussion

[27] The proper context within which the Bill and the appeal had to be considered was that the appellant was entitled to have the trial proceedings commenced against him within the time bar period as extended. That was a very important right which the appellant ought not to have been deprived of unless sufficient reason was put forward (Mejka v HM Advocate 1993 SCCR 978, Swift v HM Advocate). We reminded ourselves that the sheriff’s assessment as to whether the Crown would have been entitled to move for an extension was contradicted by the advocate depute. He conceded that such a motion could not have been granted if made by the Crown. In our view, that concession was correctly made. Neither the Crown nor the appellant invited the sheriff to adjourn the diet and even if the two accused case which the sheriff had concerns about had proceeded it would still have been possible to have commenced the appellant’s case prior to the expiry of the time bar period. Had those circumstances transpired, the expectation was that the case would have been able to start on Wednesday 21 December and could have proceeded over that day and the two following. If necessary, it could then have been adjourned until Wednesday 28 December and the following days. Whilst that timetable might have involved inconvenience to jurors and witnesses it is not unknown for cases to sit through this period and any inconvenience has to be weighed in light of any other competing rights.

[28] The sheriff explained in his report that the justification for adjourning the trial served to justify an extension of the time bar and that had he not extended the time bar his adjournment would have had no practical consequence. Despite this, he also explained that he applied the two-stage test in HM Advocate v Swift. We find it difficult to understand how this was done, other than in a formal and artificial sense. The two decisions which the sheriff made were intimately connected, and having made the decision to adjourn there was no separate consideration of the issues arising in relation to extension. Any justification for that decision has therefore to be found in the circumstances which led the sheriff to his ex proprio motu decision to adjourn.

[29] We recognised that the sheriff was entitled to take account of inconvenience to witnesses and jurors, although, as alluded to, this would be of limited importance as weighed against time bar considerations and would diminish in value if, as here, repeated extensions had been granted. We were less persuaded that the sheriff was entitled to give priority to his own view of where the appellant’s best interests lay. The appellant had the benefit of representation by an experienced firm of solicitors who had been acting for him over a very lengthy period. They were far better placed than the sheriff was to assess the impact of trial on the appellant and it was for them to judge how his interests would be impacted upon by any interruptions to the trial which might have occurred as a consequence of the forthcoming public holidays.

[30] Of paramount importance though was the case history. As we have set out, the history of the Crown’s efforts throughout 2016 to secure the evidence of MM is highly unsatisfactory and came with no proper explanation or justification. In so far as the sheriff took account of the case history he only took account of the period after service of the indictment. He took no account at all of the circumstances which we have set out above in which the Crown had known for a year and a half prior to service that the complainer MM was housebound. This was a feature which ought to have attracted significant weight in any discussion about extension of the statutory time bar period. It has been said on a number of occasions, in related circumstances, that the preliminary hearing (in High Court cases) or the first diet (in Sheriff Court cases) is expected to be the be the end-point of preparation rather than the starting point. (HMA Advocate v Forrester 2007 SCCR 216, Murphy v HM Advocate 2012 SCCR 542, HMA v MSW).

[31] A further relevant aspect of the case history was that the appellant had opposed the previous two Crown motions to adjourn the trial diets. On 5 May when the case was adjourned to allow the Crown to present a petition for authority to take evidence on commission, the date suggested for trial by the Crown was the sitting of 12 September. The minute records that the solicitor for the appellant opposed a trial being fixed for a date so far off. Despite that opposition the sheriff granted the motion, in part at least on account of the timescales needed to organise the taking of evidence on commission. Given the history to that point one might describe the amount of further time given as generous. Of course, by that stage the time bar was about to expire again and the necessary consequence of the decision to adjourn until September was that the time bar had to be extended to accommodate that trial diet. In these circumstances the appellant’s solicitor’s hands were tied. As the Lord Justice Clerk said in giving the court’s decision at paragraph 19 of HM Advocate v MSW:

“Having determined that, in the exercise of his discretion, it was in the interests of justice that the trial diet required to be adjourned, it was not open to the sheriff to determine, again as a matter for his discretion and in terms of the second stage of the test in HM Advocate v Swift that, in all the circumstances it, it was not in the interests of justice that an extension should be granted. The latter decision was bound to follow the former.”

[32] As noted earlier though, when the case called at the next first diet, on 30 August, the Crown had still not fixed a hearing to take evidence on commission, despite being granted authority to do so on 8 July after all the other procedure and false starts earlier identified. The Crown’s motion was to adjourn the September diet of trial. The hearing was continued until 6 September to allow the appellant’s instructions to be taken on this motion. The result, unsurprisingly, was that at the continued hearing the sheriff had to adjudicate over a contested motion to adjourn the trial diet. The minute records that despite opposition the sheriff granted the Crown’s motion and on the unopposed motion of the prosecutor extended the time bar to 23 December. Again, the appellant’s solicitor’s hands were tied. In light of what the Lord Justice Clerk had said in MSW, once the sheriff had decided on the motion to adjourn it would have been pointless and illogical for opposition to be advanced in relation to the application for extension.

[33] In his report the sheriff states that trial diets were adjourned and time bars extended without objection and with the acquiescence of the defence, until the diet of 15 December. In our view the sheriff has misunderstood this aspect of the case history. It is clear that the appellant objected to the two previous motions to adjourn, on 5 May and on 6 September. Given the unsuccessful nature of that opposition the appellant’s solicitor acted with professional rectitude in acceding to the consequential motions for extension. We consider that the sheriff fell into error in not recognising this.

[34] For the reasons given in paragraph [27] above, we did not consider that the circumstances as they were presented to the sheriff on 15 December justified the sheriff’s apprehension that the assize could not reasonably accommodate the complainer’s trial. Accordingly, in our opinion, the question as to whether the sheriff should exercise his discretion to adjourn the trial did not arise. However, in the event of the sheriff applying his mind to that question, he required to approach it in a proper manner. We accepted that section 75A of the 1995 Act gave the sheriff a wide discretionary power to adjourn and that such power could be exercised ex proprio motu. However, in exercising such a discretionary power the decision maker must have proper regard to all of the relevant circumstances. In the present case, in our opinion, the sheriff did not do so. He failed to take account of the pre-indictment case history, to take adequate account of the lack of progress in the case throughout 2016, to take account of the fact that the appellant had previously opposed adjournments of the trial and to give proper weight to the appellant’s right to have the trial commenced within the time bar period as extended.

[35] In making the decision to adjourn the sheriff was in effect making a decision to extend the time bar period. In that context it was necessary for him to take account of the whole history and to assess why the case was in the situation in which it was. Had he done so he could only have concluded that responsibility for the previous lack of progress lay squarely with the Crown. A proper assessment of the case history would have led him to conclude that no sufficient reason had been shown which might justify an extension. His statement that he could not understand what prejudice the appellant could be said to suffer in our view demonstrates that he failed properly to appreciate the unjustifiable delays to which we have drawn attention and to take account of the important nature of the right which the appellant had and which he had already been deprived of on a number of previous occasions.

[36] For these reasons we were satisfied that the Bill challenging the sheriff’s decision to adjourn should be passed and that the appeal challenging his decision to extend the time bar period should be allowed.